Citation Nr: 18159645 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-43 283 DATE: December 19, 2018 REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD), to include as due to Gulf War Syndrome is remanded. Entitlement to service connection for increased saliva production and dry mouth and throat claimed as due to Gulf War Syndrome is remanded. Entitlement to service connection for allergy symptoms claimed as due to Gulf War Syndrome is remanded. Entitlement to service connection for sleep apnea claimed as due to Gulf War Syndrome is remanded. Entitlement to service connection for hives (also claimed as dry skin) claimed as due to Gulf War Syndrome is remanded. Entitlement to service connection for restless leg syndrome, spasms and body jerks claimed as due to Gulf War Syndrome is remanded. Entitlement to service connection for sensitivity to smells and odors and photophobia claimed as due to Gulf War Syndrome is remanded. Entitlement to service connection for headaches, fatigue, vertigo and other balance issues, dizziness and uncontrolled body temperature claimed as due to Gulf War Syndrome is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1987 to December 1991. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran seeks service connection for PTSD. The Veteran’s most recent VA PTSD evaluation took place in April 2016, and the examiner indicated that the Veteran does not meet the criteria for a diagnosis of PTSD per the DSM-V. As the appeal was certified to the Board after August 2014, the DSM-V is the applicable Diagnostic and Statistical Manual of Mental Health Disorders. See 79 Fed. Reg. 45,093 (Aug. 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-V). However, the Veteran was also afforded a VA examination in August 2012, at which time the DSM-IV was applicable, and the examiner indicated that the Veteran had a diagnosis of PTSD per the DSM-IV. Because the Veteran had a diagnosis for PTSD during the appeal period, the April 2016 VA examiner needed to address that diagnosis and whether it was accurate or had resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to additional psychiatric conditions, the Board acknowledges an October 2011 letter from Greater Los Angeles Healthcare System indicating that the Veteran was treated for depression and anxiety. The April 2016 VA examiner addressed this letter and stated that at the time of the Veteran’s contact with West Los Angeles VA, he was dealing with unemployment and homelessness, which at least as likely as not accounted for the symptoms described in the progress notes. The examiner further stated that the Veteran does not currently have mental illness symptoms. The examiner expounded on this statement and indicated that the Veteran is happily married, completing his education, and developing several career opportunities. While these statements adequately address the previous diagnoses for depression and anxiety, these statements do not address the previously diagnosed condition of PTSD. The Board acknowledges that the August 2012 VA examination took place at West Los Angeles VA Medical Center, and as such, may have been included in the April 2016 VA examiner’s assessment of the Veteran’s prior treatment at West Los Angeles VA. However, the Board notes that the August 2012 VA examiner linked the PTSD to the Veteran’s service, not to homelessness or unemployment. The April 2016 VA examiner did not address this opinion. The Board notes that even assuming arguendo that the DSM-IV diagnosis were appropriate in this case, the record is not sufficient to grant the claim. While the August 2012 VA examiner provided a positive nexus opinion, the opinion is based on an unverified stressor and, as such, is not adequate. In this regard, the Board explains that there are specific criteria for establishing service connection for PTSD. See 38 C.F.R. § 3.304(f). The first element is a diagnosis per the applicable DSM, for which the appeal is being remanded. However, even in considering the DSM-IV diagnosis, the second element has not been met. The second element requires a verified in-service stressor. As to this element, a veteran’s lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board acknowledges that 38 C.F.R. § 3.304(f) sets forth exceptions where a veteran’s lay statements alone are sufficient to establish an in-service stressor. However, this Veteran does not meet any of those criteria. As such, his lay statements alone are not sufficient to establish a stressor and instead, his stressor must be verified. The Board notes that the events of his claimed stressors are not reflected in his service treatment records. Thus, on remand, the Regional Office (RO) should provide the Veteran appropriate notice of evidence sufficient to corroborate his claimed stressor, to include buddy statements. Moreover, the Board finds that clarification is needed as to the claimed stressors. The Veteran initially indicated in October 2011 statements that he witnessed a fellow Marine accidentally killed by another Marine. An October 2012 VA letter indicates that there was insufficient evidence to submit this stressor to the Joint Services Records Research Center because the Veteran did not provide additional information as requested. As the appeal is being remanded, the Veteran has another opportunity to do so. However, the Veteran and his representative are apprised that the Veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). Additionally, the Veteran reported to the August 2012 VA examiner that he witnessed a Marine kill himself as well as a Marine who drowned; he did not note the accidental killing. Then, the April 2016 VA examination report notes a stressor of seeing deceased troops and decomposing bodies in the street without any note of witnessing a specific Marine’s death. On remand, the Veteran is asked to submit a new statement in support of his PTSD claim discussing all claimed in-service stressor(s) for which he currently seeks service connection for PTSD along with any corroborating evidence, which, as noted, may include buddy statements. The RO should take appropriate steps to verify these stressors. Then, a new medical opinion should be provided as to the etiology of any current diagnosis for PTSD with regard to any verified stressors. Importantly, the examiner must address the August 2012 VA examination indicating a diagnosis of PTSD per the DSM-IV. As service connection for PTSD has not been established, remand is also necessary to address the Veteran’s assertion that his PTSD is due to an undiagnosed illness resulting from his Gulf War service. The Board will discuss that claim below as there are also specific criteria for establishing service connection for conditions claimed as due to Gulf War service. 2. The claims for entitlement to service connection for increased saliva, allergies, sleep difficulty, hives, restless leg, sensitivity to smells and light, and headaches due to undiagnosed illnesses claimed as due to Gulf War syndrome are remanded. Remand is necessary for a new Gulf War examination and medical opinions as to the remaining issues on appeal. In August 2012, the Veteran was afforded a VA Gulf War general medical examination. As to affected systems/area claimed as secondary to Southwest Asia exposure or that could represent “undiagnosed illness” or “diagnosed medically unexplained chronic multi symptom illness,” the examiner listed the following: skin and scars (skin diseases/hives); sinus, nose, throat, dental and oral (sinusitis/rhinitis/smell/excess saliva); respiratory (sleep apnea); digestive and abdominal wall (stomach and duodenal conditions); musculoskeletal (hip and thigh); miscellaneous musculoskeletal (muscle injuries); endocrine (thyroid and parathyroid); neurologic (headaches); and chronic fatigue syndrome. The examiner indicated that there is no diagnosed illnesses for which no etiology was established. The examiner also indicated that there were no additional signs and/or symptoms not addressed through completion of the Disability Benefits Questionnaires (DBQs). The examiner also indicated that the Veteran had a normal physical exam except as noted in additional questionnaires. In the corresponding DBQs, with the exception of a torn left thigh muscle diagnosed in 1987, the examiner indicated that the Veteran did not have a current diagnosis for any of the claimed symptoms. However, the August 2012 assessments are not adequate to decide the claims. The August 2012 VA examiner failed to properly diagnose the claimed conditions as either an undiagnosed illness, a diagnosable but medically unexplained chronic multi symptom illness of unknown origin, a diagnosable chronic multi symptom illness with a partially explained etiology, or a disease with a clear and specific cause. Instead, the examiner merely indicated that there was no diagnosis of the claimed conditions. Pursuant to the provisions of 38 U.S.C. § 1117(a)(1) and 38 C.F.R. § 3.317, service connection is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. A “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. These provisions were not explicitly considered by the August 2012 VA examiner with respect to the Veteran’s claimed symptoms. As such, remand is necessary for a new Gulf War general medical examination and opinions for the Veteran’s claimed symptoms. The Board finds that clarification would be helpful as to the issues being remanded: Sleep Apnea The August 2012 VA examiner indicated that the Veteran was in the process of being “worked up” for sleep apnea and that a diagnosis will be made by “those more qualified.” The record now reflects a current diagnosis for sleep apnea. However, there is no opinion as to whether there is a clear and specific etiology for the Veteran’s sleep apnea. As such, his claim for this condition pursuant to Gulf War syndrome is still viable, and an opinion is necessary as to whether the Veteran’s sleep apnea is a manifestation of an undiagnosed illness due to Gulf War exposure. PTSD As noted, the Veteran also asserts that his PTSD is due to an undiagnosed illness resulting from his Gulf War service. As a clear etiology of the Veteran’s PTSD has not been established, if it is determined on remand that he has current psychiatric symptoms, an opinion is necessary as to whether these symptoms are attributable to an undiagnosed illness related to the Veteran’s Gulf War service. Leg Symptoms While the examiner noted the 1987 left thigh muscle tear, the examiner did not address the Veteran’s reported symptoms of muscle spasms, restless leg syndrome or body jerks. As such, the Board cannot determine that those symptoms are linked to the 1987 left thigh muscle tear. Remaining Symptoms The August 2012 VA examiner addressed the Veteran’s headaches, uncontrolled body temperature (noting day and night sweats and chills), itchy and watery eyes, running nose, sneezing fits, and hives. The examiner indicated that there is no current diagnosis. However, as noted, an opinion is still necessary as to whether these symptoms are attributable to an undiagnosed illness related to the Veteran’s Gulf War service. As to the Veteran’s reported symptoms of fatigue, balance issues, increased saliva, dry mouth, issues with sense of smell and photophobia, the examiner did not address these symptoms. As such, on remand, these symptoms must be addressed and an opinion provided as to whether any symptoms that currently exist are manifestations of an undiagnosed illness due to the Veteran’s Gulf War service. Accordingly, the matters are REMANDED for the following action: 1. Contact the Veteran and request detailed information to permit verification of his claimed PTSD stressor(s). Request that he identify additional sources of information which may serve to corroborate the stressor events. Notify the Veteran that he may provide “buddy” statements or other corroborating evidence to support the occurrence of the in-service stressors. 2. Then, schedule the Veteran for a new VA examination with an appropriate examiner other than the April 2016 PTSD examiner to assess the nature and etiology of his claimed PTSD. For each issue remanded, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. With regard to the claim for PTSD: i) Given that the April 2016 VA PTSD evaluation is not adequate, initially, the examiner is asked to indicate whether the Veteran currently meets the DSM-V criteria for PTSD. If he does not, the examiner is asked to reconcile that determination with the August 2012 PTSD DSM-IV diagnosis. ii) For any verified stressors, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD is due to any such verified stressors. 3. Gulf War Syndrome: For each of the following conditions/symptoms: i) sleep apnea ii) headaches iii) uncontrolled body temperate (to include night and day sweats and chills) iv) allergy/sinus symptoms (to include itchy and water eyes, runny nose and sneezing fits) v) hives (and any other dry skin condition) vi) restless leg syndrome, spasms and body jerks vii) vertigo, dizziness and balance issues viii) fatigue ix) sensitivity to smell and photophobia x) increased saliva production, dry mouth and throat xi) PTSD (psychiatric symptoms) The examiner is asked to address the following: a) whether the symptoms are due to 1) an undiagnosed illness; or 2) medically unexplained chronic multisystem illness; or 3) diagnosable chronic multi-symptom illness with a partially explained etiology; or 4) is a disease with a clear and specific etiology and diagnosis. b) If the examiner determines that the symptom(s) is/are either a diagnosable chronic multi-symptom illness with a partially explained etiology or has a clear and specific etiology and diagnosis, then the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disorder was incurred in or is otherwise related to the Veteran’s active service. 4. After completing the above actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel